TORONTO — It was the unspoken question at the Ontario Court of Appeal Monday morning: What the heck are we all doing here anyway?

This, after all, was not an appeal of the verdict in the Richard Kachkar case, which was reached by a Ontario Superior Court jury last March, the jurors finding that while Kachkar was at the wheel of a stolen snowplow when it struck and killed Toronto police Sgt. Ryan Russell, he was not criminally responsible by virtue of mental disorder.

Neither was it an appeal of a fixed sentence, there being none. Kachkar, who was remanded in custody after the verdict, had switched from the criminal justice system to the world of forensic psychiatry and appeared before the Ontario Review Board, the provincially appointed tribunal whose members — they are doctors, lawyers and lay people — make these tricky decisions.

That “disposition” hearing happened in April last year, and the result was hardly a surprise, since the prosecutor and defence lawyer had agreed upon a joint submission, just as all the psychiatrists hired to evaluate Kachkar for trial had agreed he was seriously mentally ill and in the grips of psychosis when he stole the snowplow and struck the 35-year-old officer.

Kachkar was indefinitely detained at Ontario Shores, a medium-security psychiatric unit in Whitby, just east of Toronto, in the secure forensic unit.

And there he has remained, apparently fully compliant with the meds his psychiatrists have recommended, remorseful, co-operative and even deemed pleasant — a model patient, as his appeal lawyer Peter Copeland put it.

As for the in-hospital passes he was granted, according to Dr. Karen De Freitas, medical director for the hospital’s forensic program and for a time Kachkar’s treating psychiatrist, in one recent 108-day period, the 47-year-old received escorted privileges 131 times — all without incident.

In other words, during that several-month span, Kachkar was leaving the secure ward, with an escort or two, at least once a day.

So what on earth then drew the lawyers — one from the provincial Crown’s office, Copeland for Kachkar, another representing Ontario Shores, which produced the so-called “fresh evidence” application with Dr. De Freitas’s affidavit — and Sgt. Russell’s in-laws and the press to Courtroom 10?

The Crown was appealing a tiny slice of the decision that came out of the ORB last spring.

In the joint submission urging that Kachkar be sent to Ontario Shores, no one had asked that he be allowed escorted passes into Whitby if his condition and circumstances warranted.

All the lawyers had asked was that he be given escorted privileges allowing him to leave the secure ward — for group therapy and other appointments or to walk the hospital grounds. But passes into town, off the grounds, were not part of the formal joint submission, and were not contemplated or discussed.

Now when the ORB released its decision with this unsought-opportunity for Kachkar, Russell’s widow, Christine, denounced it immediately.

She noted that as the victim’s wife, she had agreed to the joint submission in good faith, and now felt ambushed by the add-on.

And fair enough: In a perfect world, Ms. Russell would have been asked for her views.

But in the scheme of things, it was then and remains small potatoes, hardly the stuff to have ruinous effects upon the justice system.

Yet there was prosecutor Eric Siebenmorgen alleging that this was an error by the ORB that led to “a miscarriage of justice,” which in turn had the potential of undermining public confidence.

He was asking that the appeal court set aside the conditions of Kachkar’s detention and order a review.

This, despite the fact that the discussion is moot: Kachkar’s annual review is scheduled already for April 22, and though the hospital has had the ability to grant him a pass to go into town, it hasn’t yet done so. The only time he has left the institution was to attend St. Michael’s Hospital in Toronto for treatment of the gunshot injuries he received when he was finally stopped in his snowplow rampage by Toronto Police.

He went to St. Mike’s three times last fall; all were uneventful trips.

And the evidence from Dr. De Freitas suggests that Kachkar’s conduct in hospital would now qualify him for the passes anyway; in other words, if the ORB made a mistake last spring by granting him the broader passes, Kachkar’s behaviour since effectively has cured the error.

The truth is, and this was in the evidence heard at the ORB hearing last April by Dr. Philip Klassen, who testified in person, because the victim was a much-loved police officer and because of the high public profile of the case, it’s likely that everyone — lawyers, psychiatrists, the board — has erred on the side of caution with Kachkar.

The board is required to balance public safety with the least onerous and least restrictive conditions for the patient.

The appeal court reserved its decision.

Kachkar has an excellent prognosis; he has a low risk of going AWOL and, before he slipped into psychosis and stole the snowplow on Jan. 12, 2011, he had shown clear signs (which staff at a psychiatric hospital would surely recognize, as indeed Kachkar’s friends did) that he was in trouble.

Indeed, he tried to get help, going first to emergency at St. Michael’s (he left because the wait time was too long) and then a walk-in clinic, where a doctor recommended he go back to the hospital.

This was yet another instance where a mentally ill person in evident distress didn’t get help, and the police — tragically, this time, at the cost of Russell’s life — were left to deal with it.

If any system has been brought into disrepute by the young officer’s death, it’s the health-care system. Going after one condition of Richard Kachkar’s detention is akin to shooting a flea with an elephant gun — and the wrong flea, to boot.

Christie Blatchford was born in Quebec and studied journalism at Ryerson University in Toronto. She has written for all four Toronto-based newspapers. She has won a National Newspaper Award for column... read more writing and in 2008 won the Governor-General’s Literary Award in non-fiction for her book Fifteen Days: Stories of Bravery, Friendship, Life and Death from Inside the New Canadian Army.View author's profile